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The Ups and Downs of the Litigation Process

17/08/2016 | Nick Leigh

What clients should expect when they get involved with litigation, including seven handy tips

The word “Justice” features heavily in the name of England’s High Court, and justice is what it intends to provide. But anyone who has tried to navigate the Royal Courts of Justice building on the Strand will find its Escher-like interior an uncomfortable warning as to the challenges that may lie ahead when seeking to right a wrong by way of civil litigation.

The process itself, on paper, is beautifully simple. A dispute arises. You threaten your opponent with litigation unless they make amends. They resist. You “sue” by issuing your claim. Your opponent says why you should not be entitled to the remedies you seek. The parties disclose relevant documents, exchange witness statement evidence, file expert reports for matters needing particular specialist know-how and then, if the dispute has not yet been resolved, a Judge decides who is right and who is wrong at trial.

However, litigation is not, in the main, a game played on paper and, as is often the case, once humans are introduced to the process, things can get a little more complicated.

A client well advised should not be deterred from pursuing their claim – and justice – to a beneficial and satisfying resolution. But that equally well advised client should be left in no doubt that, at times, they will feel as if they are walking up staircases that lead them to a lower floor than the one on which they started; that invisible forces are sanding away their resolve; and when you keep your friends close and your enemies closer, what on earth should you do with your opponents’ lawyers?

Your solicitor must pay as much attention to the client as he or she does to the case and be familiar both with the aspects of litigation for which clients are ready, but also those for which they are not. Here are just a few examples of what, in our considerable experience, clients may not always think about, but which – if they did – may well make them feel a little better.

Tip 1 – Always ask what is on your mind (but don’t discuss the football)

For many clients, litigation is wholly new territory. There is much to take in, to process, all against the backdrop of the dispute itself, which may be causing financial problems and emotional strain. Even if you have been involved in litigation in the past, the circumstances of the new case, or the claims you are bringing, may be very different from what you have experienced previously. So if there is something on your mind, ask your solicitor. You may think it’s a silly question (and perhaps it is) but ask it all the same. The advice law firms provide should be catered to the specific needs of each client. Your questions will enable that advice to be more precisely tailored to you. But also bear in mind that, when speaking to your solicitor during office hours, you may wish to avoid talking about the football (or other favourite past time) or risk being charged for the pleasure.

Tip 2 – Fuel your case

Evidence is the fuel that powers cases to success. Your legal team may prepare a fine statement of your claim – it may catch the unfairness of what has occurred, and express the depth of emotion you feel – but unless you can justify your arguments, the Court has no jurisdiction to give you the remedy you seek. Sooner or later, you will need to prove your case with evidence. The more you can provide, and the sooner you can provide it, the better and quicker your outcome is likely to be. Clients are often not the best arbiters of what counts as a valuable document (or indeed an unhelpful one), so your best bet is to provide your legal team with anything that may be relevant, and let them decide. At the start of the process, the more documents your legal team have, the better they can assess whether or not you have a viable claim.

Tip 3 – Expect some turbulence

Never forget that you are in a dispute. When you have issued a claim, the Defendant wants you to go away. Your opponent and their accursed legal team therefore have every interest in making your life as hard – and as expensive – as possible. They will resist when it seems crazy to resist. They will oppose when opposing is the act of a fool. And they will enjoy the moments that leave you most feeling enraged and disheartened.

Expect this. It will happen. And in expecting it to happen, its impact on you will be much diminished. You will see your opponent’s behaviour for what it is: mere tactics. You will be able to laugh when the aeroplane is shaking, for you know that turbulence is nothing to worry about, that it really is nothing more than a load of hot air.

Tip 4 – Always be on your best behaviour

In the depths of a dispute, there can be a tendency to play nasty, or to instruct your solicitors to do so on your behalf. The exchange of a certain amount of firm words is to be expected. But the Court hates – that is, hates – those who behave badly. You get no points for petulance, or rudeness, or the rejection of what appears logical. Litigation is an attempt to establish what took place, and who should shoulder the blame and the cost of putting things right. Count to ten if need be, but always make your opponent look like the thug who earns the slight curl of the Judge’s lip – that is, a scathing rebuke in judicial terms.

Tip 5 – 70% justice

You are hurt. You have been left worse off by the brazen acts of another. You want this unacceptable position rectified. You want justice.

But a Defendant will usually have arguments and evidence of their own. The Court therefore has to carry out a balancing exercise between what it is being told by all of the parties to the case, and may find that, in certain instances, your opponent has a point.

So justice may not necessarily mean 100% justice. When all of the real world factors are taken into account, it may in fact mean 70% justice. If so, your glass is not half full – it is 70% full.

Tip 6 – The end may not be the end

So you have won – or else you failed to obtain the judgment you wanted. Either way, it may have taken a year or two from the day you issued your claim to reach this point. But that is not the end of the road. The process of starting an appeal is a low cost option. It is therefore common for the unsuccessful party to set the appeal ball rolling after judgment, by seeking permission to appeal. Often a tactical move designed to put psychological pressure on the victor, the sooner clients ready themselves for the possibility of an appeal, the less likely such a move will have the desired effect. Therefore, the prospect of an appeal is one all clients should keep in mind as early as possible, even though it may seem a long way away at the start of the case.

Tip 7 – Yes, it’s expensive – but …

When meeting your solicitors for the first time, they will provide you with the best estimate they can as to the likely cost of your case. This will be a sizeable number – a client can easily incur north of £250,000 taking a case to a High Court trial. Which is why, above all, clients must consider not just whether or not they seek justice, but if it is in their commercial interests so to do. When the bills come, clients can often be surprised that the figure given to them by their solicitors at the initial meeting on costs was not the mutterings of a lunatic who does not know how to use a decimal point, but accurate. So it is always advisable to take those initial costs figures seriously.

You also have a number of funding options available, should the law firm you choose adopt a flexible approach. Some do not. Some, like us here at Rosenblatt, certainly do, striving to structure fees in the most appropriate way, so as to cater to the particular circumstances of each client, rather than the traditional method of charging by the hour.

It’s all in the mind

You may have at stake hundreds of millions of pounds; you may have a stake five thousand. But at each end of the spectrum and at every point in between, someone is at risk at paying out a sum of money that they do not want to pay. Each case is as important to the client as any other, regardless of the amount in dispute.

At Rosenblatt, we know that our clients are human (just as we know that our client’s opponents are also only human). And we know that a fight can sometimes be rather ugly. The better you are mentally prepared for what may lie ahead, the easier the experience will be. As with all things, victory follows strength of mind. At Rosenblatt, we place as high a value on this as we do on all other parts of a matter. We make sure that we look after our client as well as we look after their case.

© Rosenblatt Solicitors 2018
Rosenblatt is authorised and regulated by the Solicitors Regulation Authority (SRA No. 00070109). The registered address and principal place of business is 9-13 St. Andrew Street, London EC4A 3AF.
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